The Study On Validity Of The International Commercial Arbitration Agreement

Arbitration and litigation is the most important way to resolve economic disputes with the same status and role. The court decisions and arbitral awards have the same legal effect and enforceable power. Compared to the litigation, arbitration has the features of simple litigation process, fast closing, costs reducing and less independent, fair and expeditious settlement of the dispute, giving the parties full of autonomy. In addition, it is has the advantages of flexibility, confidentiality, final decision on implementation and easier implementation. More and more clients select to use it.In the arbitration process, international commercial arbitration agreements is essential, it is the cornerstone of international commercial arbitration. There would be no effective international commercial arbitration award if the arbitration agreement is invalid. A legal valid arbitration agreement is not only the basis for the arbitral tribunal to exercise jurisdiction, but also the basis of the effect to the implementation. Therefore, the cognizance of validity of the agreement of international commercial arbitration is the prior issue.It is different in the legal systems from country to country, and the international community has not yet to form a unified understanding. In this paper, we will adopt the methods of theoretical analysis and comparative of the cases, and discuss in the two main ways; the constitution of validity of international arbitration agreement and the identified of the international arbitration agreement. And hoping has a benefit to China's theory and practice of international commercial arbitration. Specifically, in addition to the introduction and conclusion, the paper is divided into three chapters, the system is as follows:The first chapter is the outlines of international commercial arbitration agreement. This chapter is divided into two sections to introduce about the concept, nature and type of international commercial arbitration agreement. The international commercial arbitration agreements will be defined as: between the parties have agreed to the international nature of commercial disputes to arbitration agreements. In the basis of analyzing the linked international conventions and other documents, pointing out that the international commercial arbitration agreement is formed by the'commercial'and'international'factors.'Commercial'is defined by the'commercial'factor, because it's has a great relationship to settle it by the international commercial arbitration agreement or not. Meanwhile, with regards to the'international'factor, analysis the standards of identification contrasting to the mainly purely domestic arbitration. There are four types of theories, including'lease contrast','entity contrast','mixed contract','independent contract', about the nature of international commercial arbitration agreement. But the theory of'entity contrast'is desirable. Because arbitration agreement is not a procedural or an independent contract, it's a kind of contract in entity. The underlying objective of creating the systems of arbitration is, according to the principle of self-creation, to establish a mechanism which can choose the arbitrator by the parties themselves. In essence, this mechanism is belonging to the private area, and also a result in enlarging the principle of freedom in contrast in the scope of dispute settlement. The theory of'entity contrast'is generally accepted by the international community, and in line with the international trend of help and support arbitration. In the legislation and practice of international commercial arbitration, the international commercial arbitration agreement is divided into arbitration agreement and arbitration clause, but the latter is universally in application.The second chapter is about the valid constitutions of international arbitration agreement. This chapter detailed interoperates the form and substantive validity of international commercial arbitration agreement. The valid arbitration agreement is means whether it is in according with the legal constitution or not, which requires in inspecting the legality of the main parties, the true meaning of the parties and the other contends, etc. the point is to judge whether the agreement with the spirit and provisions of the law, whether the law has the effect, it's belonging to problem of legal value judgment. Valid arbitration agreement is different to arbitration agreements into effect. An arbitration agreement into effect is the same as Agreement established, for they are both a judgment of legal value, and determine when the agreement is fulfilled in effect since the beginning; the effect is the time to solve the problems. The valid arbitration agreement is a problem of legal value judgment; it determines the effectiveness resolving the positive or negative judgment of arbitration agreement by law. The corresponding concept of the agreement into effect is that's ineffective, the corresponding concept of valid agreement is that's invalid.In the premise of analyzing the validity, explain the validity of international commercial arbitration agreement from the aspects of form and substance, further. First, in term of the validity of form, there are a lot of problems in the practice of'Now York Convention'regulations, and point out, in the basis of further analyzing, a validity arbitration agreement should be insisted; (1), must have legal forms; (2), the parties should have the qualified qualification in entering an arbitration agreement; (3), the arbitration agreement is the true meaning of both parties; (4), the contents of the arbitration agreement must be legal. Second, in term of the validity of substance, an effective and enforceable arbitration agreement should primarily include the following basic elements: the request for arbitration, meaning that the matters referred to arbitration, the arbitral institutions. The request for arbitration is widely believed to be the basic elements of the arbitration agreement. In modern arbitration system, the meaning of the request for arbitration must be clearly certainly indicated, in according to the nature of final arbitration and have the effect of excluding the court's jurisdiction and without any ambiguous, unclear or specious. In the arbitration agreement the parties agreed to submit to arbitration the dispute must comply with the relevant provisions of national arbitration legislation. If the agreement is actually an arbitration matters relating to national legislation, the court will determine the arbitration agreement is null and void. And ordered suspension of the implementation of the arbitration agreement or refuse to recognize and enforce arbitral awards.The third chapter is the international arbitration agreement recognizes that the international commercial arbitration as a way to resolve disputes. Its essence is that the people who voluntarily, and being a party to an arbitration agreement to submit disputes to arbitration. However, due to the weaknesses and flaws in the arbitration agreement, not realizing or ineffective different understanding of the legal and arbitration practice, malicious parties to delay arbitration time factors, which determine the validity of an arbitration agreement as soon as possible. It is divided into two sections: Section I confirm the effectiveness of the institutions of international commercial arbitration agreements. This section from the current theory and practice of international commercial arbitration, international commercial arbitration agreement validity of the confirmation form: review of the arbitral tribunal and the court conducted a detailed review of the briefing and his views on controversial issues. Specific, the former from'self-immolations jurisdiction'have a functional perspective expounded the latter's supervisory review from the court of international commercial arbitration at the angle of the paper. Specifically, to the jurisdiction of the arbitral control, the arbitration proceedings, including the composition of the arbitral tribunal and supervise the implementation of some countries to allow for a substantive review of the ruling. Finally focus on the conflict in the arbitral tribunal and the courts have offered their own opinions. Section II is to confirm the validity of the agreement based on international commercial arbitration. Confirm basis of the international commercial arbitration agreement also called applicable law of international commercial arbitration agreement, it similar with applicable law of contract. This part discuss about applicable law of international commercial arbitration agreement at a starting point of combination, which is combined with the theory of private international law and the characteristics of international commercial arbitration agreement. Consider the principle of the determination of applicable law as follows: (1), the principle of autonomy of will; (2), the principle of the arbitration; (3), the principle of the legal court; (4), the principle of make it effective as much as possible.